CRIMINAL APPEAL NO

IN THE COURT OF APPEAL OF TANZANIA AT MOSHI fCORAM: NDIKA, J.A.. GALEBA. J.A., And MGONYA. 3.A.) CRIMINAL APPEAL NO. 140 OF 2021 DENIS FRANK TARIMO @ NOVAT..... .... .................. ..1st APPELLANT HAMADI ABRAHAMANI TEMU......... ........ ..... ......2nd APPELLANT VERSUS THE REPUBLIC ............... ..................... .......... ......... . RESPONDENT (Appeal from the Decision of the Resident Magistrate's Court of Moshi at Moshi) fMazengo PRM/Ext. Juris.) dated the 315t day of August, 2020 in Ext. Juris. Criminal Sessions Case No. 75 of 2018 JUDGMENT OF THE COURT f* & 11thJune 2024 GALEBA, J.A.: Denis Frank Tarimo @ Novat and Hamadi Abrahamani Temu, the first and second appellants, respectively, were arraigned before the Resident Magistrate's Court of Moshi at Moshi, Mazengo PRM - Ext. Juris, (the trial court) on a charge of murder, contrary to section 196 of the Penal Code Cap 16 of the Laws. They were alleged to have murdered one Idd Slay Mkojera also known as Idd Joseph Mkojera on 6th January, 2016 at his home located at Kisangasangeni area within i Moshi District in Kilimanjaro Region. Upon a full trial, they were found guilty and therefore convicted as charged. Consequently, the two were sentenced to suffer death by hanging. The abridged facts of the case, according to the prosecution are that; at about 21:00 hours on 6th January, 2016, the deceased, Mwajuma Hamis Temba (PW2), who was his wife and other family members were relaxed at their living room having dinner and watching TV. Suddenly, four bandits hiding their faces with masks, invaded their house with machetes and bush knives and started to assault the deceased demanding money, and put everyone under "arrest" during the banditry. Simultaneous with what was taking place at the living room, a gunshot was heard outside the house. Immediately, three more gangsters without any masks on their faces, made their way to the sitting room joining the first group of bandits. PW2 identified the last three invaders as the two appellants and another thief called Zebedayo. After gaining entry, without warning the first appellant opened fire on the deceased, shooting him from the back. The deceased fell down and would never rise again; he bled to death at the very spot of the shooting. Two days later, on 8th January, 2016 Dr. Isaria Ansosiona Maruchu (PWl) carried out an autopsy and 2 opined that the cause of death was acute cardiorespiratory arrest secondary to severe haemorrhagic shock due to massive bleeding following severe spleen and liver rapture. According to the prosecution, Jabiri Majid Mdee (PW3) also identified the appellants. Based on those facts, the appellants were charged with the murder. Although they raised their respective defences of afibi, still the trial court found them guilty as highlighted above. They were dissatisfied with that decision hence this appeal, in which they initially raised ten grounds of appeal. However, at the hearing two of those grounds were abandoned and the first three consolidated into one. Thus, this appeal is predicated on a total of six grounds of appeal, which may be paraphrased as follows; one, the appellants' conviction was based on no credible visual identification; two, the witnesses were not credible following material inconsistencies and contradictions; three, the prosecution did not call material witnesses or tender relevant exhibits; four, the appellants7 convictions were illegal because, there were grudges between the family of the deceased and the appellants; five, the trial court failed to consider favourably the appellants' defence of alibi, and; six, the prosecution failed to prove the case beyond reasonable doubt. 3 At the hearing, for the first appellant, was Mr, Charles Mwanganyi learned advocate, and for the second appellant were Ms. Patricia Eric and Mr. Emmanuel Anthony both learned advocates. Ms. Verediana Mlenza learned Senior State Attorney, teaming up with Ms. Grace Kabu and Mr. Isack Benson Mangumu, both learned State Attorneys, appeared for the respondent Republic. Mr. Mwanganyi took the floor to address us on the first appellants' complaint, that the appellants were not properly identified at the scene of crime. In determining the first complaint, we have taken into account of the parties' submissions. We will start with the relevant parts of the evidence of PW2 and PW3, since these are the only eyewitnesses, as per the court record. At page 68 of the record of appeal, PW2 stated: "We were at the sitting room having food and watching TV... I heard a gunshot outside. After that, a person came inside, he was holding a gun, he shot my husband at the back (mgongoni) before he fell and lost [consciousness] two people emerged (entered inside). I identified these two, the one who shot my husband, I identified him, he was Novat He was living dose; his house was dose and he was my regular customer at the 4 shop buying cigarettes etc. He moved to our village 9 (nine) months prior to the incident So, I knew him prior to that He constructed a house and was living there, about 30 or 40 meters approximately from our home to his. The two who entered after Novat, I aiso identified them as they put on jackets but had no masks. They put on cap/kofia but their faces were open. I identified my neighbours Hamad and Zebedayo, now deceased. They put on jackets. I knew Hamad prior to the incident. He is my neighbour too. From my place to Hamad is also approximately 30 to 40 meters. Even when you call a person hear/respond from Hamad's place. Zebedayo was also a neighbour. He was also close. The two had machetes....There was [electric] bulb light, the tight was [bright] even if a syringe (sindano), falls [one could] can find it. It was bulb, big bulbs, the incident lasted 45 minutes. They then left went outside, shot in the air and disappeared to unknown [destination]...my husband was taken to the mortuary." PW3, at pages 73 to 74 of the record of appeal, stated that: ”1 recall on 6/1/2016 at 21:00 hours, I arrived at Iddi Mkojera's house. I was from home. I was riding a bicycle. I found lights were on, but the 5 place was so quiet It was so quiet than normal. I went there to purchase some stuff. There I heard a voice saying "kaa chini ya ulinzi." I identified it to be o f Novat. He was at the sitting room door o f Iddi Mkojera house. I was on top o f a bicycle. When I wanted to drop off the bicycle, I heard another voice "nenda chini/' next I left the bicycle. When I wanted to go down, the gun was pointed towards me by Novat I heard another voice "nenda chini, " before I went down, Novat pulled a trigger towards me. It never shot me, (ikanikosa) I was puzzled, another person came from behind, and he [strangled! me on my neck. Next there was another person [who] came from behind Iddi Mkojera rs house; when he was corning, he came "akichechemea" [limping] I saw him as I was in front o f the house. I saw him, it was Hamad. He came towards me. They started attacking me with a dub. Hamad was attacking me with a dub, and an iron bar. He attacked me a lot as I positively identified him. The one who [strangled] me was attacking me with fists (ngumi) by then I was standing up, I identified him as Zebedayo. Novat after seeing that I was fighting back the two, he decided to come dose, they all attacked me. They overcame me. I fell down. They thought that I was dead. I was a bit 6 conscious. They proceeded inside. I heard about two gunshots. I iost [consciousness] and I never knew what went on after that. They put on long black jackets and hats known as boshori. They never covered their faces. Boshori does not cover face. I identified them as outside there was a huge buib fight I knew them prior. We have been in streets together. There were [electric] bulbs [which] produced [bright] light They were (iving there. Hamad was a school mate. He was ahead o f me. Novat came there. He was living there for at least seven months..." In this case, as to the brightness of light at the scene of the crime, both PVV2 and PW3 said there was bright light from large electric bulbs both in the sitting room and outside of the house, which according to each of them, enabled them to clearly see and identify both appellants. As to the proximity, PW2 said the incident tookplace in the sitting room where she was also seated, whereas PW3 was even attacked at close range by the second appellant using an iron bar and a wooden club and soon thereafter, the first appellant came closer to him and attacked him. PW2 stated that the time that was spent at the scene was forty-five minutes. As to whether, the two witnesses knew the appellants before or not; PW2 stated that she 7 knew the first appellant for the previous nine months and was her regular customer at her shop. The second appellant lived very close to her, because they shared even a boundary of their land. She said the appellants' respective homes were around 30 to 40 meters from her's. PW3 said that he knew the first appellant because he had moved to the village about seven months previous to the incident, and the second was his ex-school mate, whom he knew for a long time. The additional identification aid, advantageous to the prosecution was the fact that the appellants, at the scene of the crime had their faces bare, with no masks. In fact, the kind of Identification that came out of the evidence of PW2 and PW3 was mainly recognition rather than visual identification of strangers. Mr. Mwanganyi, stated that PW2 could not have been able to recognize the appellants because there was a state of terror and panic. To support his contention, he cited the case of Abdul Ally Chande v, R, Criminal Appeal No. 529 of 2019 (unreported). With respect to Mr. Mwanganyi, in the cited case, there were other issues with identification; for instance, one of the witnesses was being attacked by five people and also the witness mentioned only that there was light, without disclosing its source or intensity. Thus, the 8 case is distinguishable, in view of the amount and quality of evidence that was tendered in this case. At any rate, if we were to agree with the learned counsel that, a state of terror eliminates all possibilities of identifying a suspect, we would certainly be wrong, because it is a common phenomenon world over, that almost all robberies involve some form of terror and violence. Thus, we cannot, hook line and sinker, hold that where there is a state of terror and panic, then perpetrators of the violence cannot be identified. That would be a dangerous position to uphold, because it would potentially expose civilians to even more serious acts of terror and violence. Mr. Mwanganyi, also contended that the recognition by PW2 and PW3 failed short of legality because they did not give details of their attire and stature while at the scene of the crime. Again, respectfully, we do not agree with learned counsel, because a requirement to describe such details is necessary where a suspect is a stranger to the witness. In this case the witnesses knew the appellants, and the latter knew the former pretty well. The other point that was raised, was that the two witnesses did not name the appellants at the earliest possible opportunity and that it is not clear if PW2 named the suspects to Ramadhani. Now let us be clear here, in Marwa Wangiti Mwita and Another v. R [2002] T.L.R. 39, we observed that naming a suspect at the earliest possible opportunity constitutes an assurance of the credibility of the witness. However that decision; first, did not hold that naming the suspect to the person that the witness meets is the only assurance that the witness is credible, and; second, the case did not lay as a rule that failure to name the person that the witness met immediately after the crime, on all occasions, renders the evidence of that witness unreliable. We wish to observe that, there is no assurance that any person that the witness meets first, must in all cases be interested in having the named suspect tried and punished. In our view, it is not impossible for the effects of a reckless disclosure to undermine timely arrest, credible investigation and even a successful trial, in case such a disclosure is made to a person who decides to side with the suspect. In this case however, the names of the appellants were disclosed to PW4, just in the morning of the following day. That said, we do not agree that an omission by PW2 to mention the names of the suspects to Ramadhani, shattered her credibility. Thus, we agree with Ms. Mlenza that the appellants were properly identified by PW2 and PW3, at the scene of the crime. Now, in law and even logic, a conclusion that the appellants were properly identified at the scene of the crime, dematerializes the defence of alibi into a sheer state of vanity, as was observed in the case of Abdallah Hamis Salim @ Simba v. R, Criminal Appeal No. 68 of 2008 (unreported). In view of the foregoing, the first ground of appeal is hereby dismissed; and the fifth in respect of the alibi, is pronounced abortive. Next is a complaint in the second ground of appeal that PW1, PW2 and PW3 were not credible witnesses because, their evidence was full of contradictions. In this jurisdiction, the subject of contradictions has been covered by this Court widely. What we have always held is that where there are inconsistencies, the court is duty bound to address them and make its position clear, as to whether they are material and major or they are minor and inconsequential. Major contradictions are those that are in respect of facts necessary to prove the ingredients of the offence charged. These, if existing, are deemed to shake the very substratum of the case in question. Contradictions as these, go to the root of the case and badly impact on the credibility of the witnesses giving the evidence, and certainly, the evidence itself. On the other hand, the contradictions in the evidence are minor and trivial, if they relate to peripheral and marginal facts that do not seek to directly prove the ingredients of the offence charged. They are contradictions which whether present or absent, the ingredients of the offence, still remain proved. The impact of these contradictions to the case, has been adjudged to be inconsequential to the credibility of the witnesses, leaving it intact, with no ability to adversely affect evidential weight of the evidence adduced. It is in light of this understanding that we will address the contradictions and inconsistencies highlighted by Ms. Eric. There were five contradictions we captured from M-s, Eric's submissions. They were on which weapons the second appellant was holding; that PW2 said the appellant had a machete but PW3 said he had an iron rod and a club. In this case, we do not think it was impossible for the second appellant to assault PW3 with the metal rod and a club outside, and then enter the house with a machete. In any case, the point is that the second appellant had deadly weapons, with which he used to attack PW3 and to impose threat in the house. The other complaint related to the number of gunshots at the scene of the crime. PW1 stated at page 64 of the record of appeal that, the injury of a bullet, at the inlet is always small compared to the outlet, because the ammunition blasts after entry Into its target object, that is why there were multiple injuries inside the body of the deceased and only one at the back where the bullet first hit his body. That is to say, PW2 who said that the deceased was shot once at the back, said the same thing as PW1. There was also a complaint, that PW4 did not see any impact mark of any gunshot on the wall. With respect, we do not see how would that have anything to do with the murder of the deceased. That is so because in this case, the issue was who shot the deceased, and not who shot the wall. There was still another point. The issue of the caps and, the boshoris. In this case, the point for the trial court was not the design of hats that the gangsters had, the issue was whether the hats that the appellants wore concealed their faces. In this case, according to PW2 and PW3, both designs of hats; the caps and the boshoris, did not hide faces. And that was the point. Learned counsel complained that, at one point PW2 said that she did not remember if someone took cartridges from the scene of the crime, but later she said that it was the police who took them. In resolving this complaint, the question we want to underline here is this; what had the person who took the cartridges to do with proving death. The case before the court was not theft of, or the missing cartridges, it was a murder case. In our view even if cartridges were to be left at the scene of the crime without being picked by anybody, the fact would not have any effect on the evidence of PW2, who saw his husband being shot. The other point raised was that at the police PW3 said that he identified Zebedayo after the cloth he had masked himself with, dropped from his face, while before the trial court he said that ail the bandits wore boshoris. This point was covered thoroughly by the trial court at pages 302 and 303 of the record of appeal. Again, the major point was that the face of the said Zebedayo, could be seen and his identity established. Essentially, we did not find anything substantial with ability to shake the credibility of either PW1, PW2 or PW3 in their evidence. In this case we are settled in our mind that, all contradictions highlighted in this appeal, were minor and inconsequential. Thus, we dismiss the second ground of appeal for want of merit. The next ground for determination is the third ground that, the prosecution did not call material witnesses and tender relevant exhibits. In support of her position, Ms. Eric relied on the case of Tipai Kilusu Lendini and Another v. R, Criminal Appeal No. 397 of 2020 (unreported). In law, a material witness is a witness whose evidence is significantly consequential to the substantive issue before the court. In this case the substantive issue before the court was whether the appellants are the ones who killed the deceased. A person who would affirmatively answer that question, would be a material witness in that case. See this Court's decisions in Tipai Kilusu Lendini {supra) and the DPP v. Sharif s/o Mohamed @ Athumani and Six Others, Criminal Appeal No. 74 of 2016 (unreported), We will resolve this ground by elimination. In this case the evidence of Ramadhani, the Ward Executive Officer and many other civilians would necessarily be hearsay, because none of them saw any appellant shooting the deceased, see section 62 (1) of the Evidence Act. So, they cannot be material witnesses. Therefore, we remain with the evidence of PW2's child of class 6 and Jenifer, a maid who had been recruited only a month before the deceased was killed. In any case, these two individuals were seated together with PW2, such that what the latter saw, is what they saw. Generally, the prerogative of which witness and how many of them to call, resides in the prosecution, not the defence. To put it differently; the prosecution is not compellable to call all material witnesses at their disposal, particularly if few or any of them can give a thorough account of the facts material to their case. That is part of the import of section 143 of the Evidence Act. Thus, we are unable to fault the trial court for not drawing an adverse inference against the prosecution case in that respect. In this ground too, Ms. Eric challenged the prosecution for not tendering the cartridges and the ballistic report. The trial court stated, and properly so, in our view that, there was no clear evidence that the cartridges were collected and also the gun was not seized, such that both were not tendered. We wish to add that, considering the evidence of PW2 and PW3, we think tendering of the ammunition shells and the report of a ballistic expert, would not be of any additional evidential value. In the circumstances the third ground of appeal has no merit, it is hereby dismissed. The fourth complaint was that the appellants case was fabricated because there were grudges between the family of the deceased and the appellants. Again, by elimination we dismiss this ground as against the first appellant because he does not complain about any grudges in his evidence. In respect of the second appellant, we acknowledge that there was no dispute that there were grudges between his family and deceased's family. What however diffuses his 16 complaint, is the fact that, it is not only PW2 who saw him at the scene of the crime. PW3 also saw him at the very scene, coming limping from the backyard of the deceased's house, and assaulted him. This is the same reason that was given by the trial court, and we have no reason to fault the finding. So, the second appellant was apprehended and charged following his active participation in murdering the deceased, not grudges. Thus, we find no merit in the fourth ground of appeal, which we hereby dismiss. In respect of the sixth ground, proof of murder needs demonstration of three ingredients; one, an unnatural human death; two, that such death was caused by the accused, and; three, that the killing was actuated by malice aforethought. In this case, the deceased was killed, no dispute about it. In view of the discussion in this appeal; the appellants are responsible for the murder. And as for the mens rea, there are many criteria, but we can examine the weapon used, and in this case a gun was. Any gun mounted with appropriate ammunition, if is not the deadliest weapon at whose barrel mankind has suffered the most, it is one of them. Thus, the complaints that the case was not proved to the standard required, have no substance. In the upshot, this appeal has no merit, and is hereby dismissed in its entirety. DATED at MOSHI this 10th day of June, 2024. G. A. M. NDIKA JUSTICE OF APPEAL Z. N. GALEBA JUSTICE OF APPEAL L. E. MGONYA JUSTICE OF APPEAL The Judgment delivered this 11th day of June, 2024 in the presence of Ms. Patricia Eric and Mr. Emmanuel Anthony both learned counsel for the 2nd Respondent also holding brief for Mr. Charles Mwanganyi, learned counsel for the 1st Appellant and Ms. Bertina Tarimo, learned State Attorney for the Respondent/Republic, is hereby certified as a true copy of the original. J(jD 18